STATUTE OF LIMITATIONS
- Personal Property2 YearsHaw. Rev. Stat. § 657-7
- Personal Injury/Death2 YearsHaw. Rev. Stat. § 657-7
- Breach of Contract/Written6 YearsHaw. Rev. Stat. § 657-1
- Breach of Contract/Oral6 YearsHaw. Rev. Stat. § 657-1
- Breach of Contract/U.C.C./Goods4 YearsHaw. Rev. Stat. §490:2-725
- Statute of Repose/ProductsN/AN/A
- Statute of Repose/Real Property10 YearsHaw. Rev. Stat. § 657-8*
- Breach of Warranty/U.C.C.4 YearsHaw. Rev. Stat. § 490:2-725
- Breach of Warranty/Implied Merchantability4 YearsHaw. Rev. Stat. § 490:2-725
- Workers’ Compensation2 YearsHaw. Rev. Stat. § 386-8
- Strict Product Liability2 YearsHaw. Rev. Stat. §657-7
Statute of Limitations Exceptions
*10 Years from date of completion of improvement to real property, but 2 years after accrual. Haw. Rev. Stat. § 657-8.
Contributory Negligence/Comparative Fault
Modified Comparative Fault. 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. As long as plaintiff’s fault is not greater than combined defendants’ fault, they can recover, minus the pro-rata share of their own fault. Haw. Rev. Stat. § 663-31.
Med Pay/PIP Subrogation
Med Pay: Yes. Med Pay coverage beyond PIP is optional.
PIP: No. PIP subrogation is in limbo. Haw. Rev. Stat. § 431:10C-307 (1999) allows a PIP insurer to be “reimbursed” (not subrogated) 50% of the amount of no-fault benefits it pays that are duplicated in a third-party recovery, up to the maximum limit defined in § 431:10C-103. The burden of proving duplication is on the PIP carrier. However, this statute conflicts with the “Covered Loss Deductible” Statute (§ 431:10C-301.5) which provides that any bodily injury recovery is “reduced by $5,000 or the amount of PIP benefits incurred, whichever is greater, up to the maximum limit.” This conflict has not been resolved under Hawaii law. The “maximum limit” referred to in the conflicting statutes is defined in § 431:10C-103 as “$10,000 per person.” Arguably, 50% of PIP benefits paid in excess of $10K must be reimbursed, although such reimbursement is rarely done in Hawaii. Others argue that § 431:10C-307 limits reimbursement to 50% of the maximum amount, or $5K. Third-party suits of less than $5K are not allowed. If medicals are between $5K and $10K, PIP benefits are subtracted from the verdict amount. You cannot subrogate against optional additional coverages such as UM/UIM. Sol v. Hawaii Ins. Co., 875 P.2d 921 (Haw. 1994); State Farm v. Gepaya, 978 P.2d 753 (Haw. 1999).
However, the Minn. Ct. Appeals has interpreted Hawaiian law and declared that the plain language of § 431:10C–307 does not abrogate a no-fault insurer’s subrogation rights against a tortfeasor or a tortfeasor’s insurer at common law. American Family Mut. Ins. Co. v. American Automobile Ass’n d/b/a Auto Club Ins. Ass’n, 2013 WL 656493 (Minn. 2013) (applying Hawaii law).
An argument is also made that the tort liability of a tortfeasor is not limited by Hawaii’s no-fault system if the tortfeasor is operating a vehicle while under the influence. Section 431:10C-306(e)(2)(D) provides that it does not limit the civil liability, including special and general damages, of any person who operates a motor vehicle in violation of § 291E-61 (Operating a vehicle under the influence of an intoxicant).
*No-fault state. Monetary and verbal thresholds. The two year statute of limitations runs from last PIP payment. Haw. Rev. Stat. § 431z;10C-315(b)(3).
Deductible Reimbursement
Automobile: No applicable statute, Administrative Code provision or case law specifically setting forth a duty to reimburse a deductible. However, with regard to UM/UIM subrogation, Haw. Stat. § 431:10C-305.5 provides: “If insured is involved in accident with uninsured motorist and insured paid deductible amount for damages incurred in that accident, and if insurer recovers any money from uninsured motorist, insurer shall reimburse insured, provided that: (1) amount recovered shall be divided equally between insured and insurer; (2) amount of insured’s reimbursement shall not exceed deductible paid; and (3) if amount of damage exceeds $2,500, insurer shall: (a) pay full amount of deductible to insured; or (b) initiate proceedings against uninsured motorist to recover damages.”
Property: None.
Made Whole Doctrine
Hawaii requires that an insured be “made whole” before an UM carrier may require the insurer to reimburse the UM carrier after receiving a tort recovery from an UM or party jointly liable with the uninsured tortfeasor. AIG Hawaii Ins. Co., Inc. v. Rutledge, 955 P.2d 1069 (Haw. App. 1998). However, Hawaii has not specifically applied the Made Whole Doctrine in a traditional subrogation case. In Hawaii, the right to contractual subrogation, as opposed to equitable subrogation, does not depend on principles of equity. Therefore, when subrogation claimed by an insurer is based on a contract, the policy’s subrogation provisions seem to constitute the sole measure of its rights. State Farm Fire & Cas. Co. v. Pacific Rent-All, Inc., 978 P.2d 753 (Haw. 1999).
Economic Loss Doctrine
Majority Rule. The ELD bars claims for relief based on products liability or negligent design and/or manufacture theory for economic loss stemming from the product alone. Bronster v. United States Steel, 919 P.2d 294 (Haw. 1996). Exceptions exist for negligent misrepresentation and fraud. In a construction context, purely economic losses cannot be recovered in tort from design professionals by those in privity of contract with those professionals. City Express, Inc. v. Express Partners, 959 P.2d 836 (Haw. 1998).
Landlord/Tenant Subrogation
Hawaii has not directly addressed this issue.
Spoliation
Tort of Spoliation: Hawaii courts have not resolved whether Hawaii law would recognize a tort of spoliation of evidence. Matsuura v. E.I. du Pont de Nemours and Co., 102 Haw. 149, 168, 73 P.3d 687, 706 (Haw. 2003).
Parental Responsibility
Minor’s Driving. Joint and several liability is imposed on the person verifying driver’s license. Haw. Rev. Stat. § 286-112.
Child must be under 18-years-old.
Tortious Acts. Joint and several liability is imposed on parent for child’s tortious acts. Haw. Rev. Stat. § 577-3.
Child must be unmarried and under 18-years-old.
Graffiti. Parents liable for graffiti damage and obligation to clean damage up. Haw. Rev. Stat. § 577-3.5.
Child must be under 18-years-old.
There are no limits on liability.
Contribution Actions
Modified Joint and Several Liability. Since 1999, generally several liability; however, some exceptions include joint and several liability for personal injury claim non-economic damages and intentional tort damages. Haw. Rev. Stat. § 663-10.9.
Contribution plaintiff is entitled to contribution from a tortfeasor whose liability was extinguished by the settlement, either in main action or separate action. An independent action for contribution will not be allowed if the right can be enforced with a third-party action or cross-claim in the principal lawsuit. Haw. Stat. § 663-12 (1984); Gump v. Wal-Mart Stores, Inc., 5 P.3d 407 (Haw. 2000).
The underlying two (2) year statute of limitations appears applicable, but runs from date of settlement payment. Albert v. Dietz, 283 F.Supp. 854 (D.C. Haw. 1968).
Suspension of Drivers' Licenses
Administrative Suspension: Administrator must suspend the driver’s license of any person who does not have on file evidence of financial responsibility. Haw. Rev. Stat. § 287-6. Suspension will remain in place until adequate security is deposited, two (2) years have elapsed and no action for damages has been filed, or there has been adjudication of non-liability. Haw. Rev. Stat. § 287-9.
Judgment: If a person fails to satisfy a judgment within sixty (60) days, the judgment creditor may request the court to forward a certified copy of the unsatisfied judgment to the Administrator. Haw. Rev. Stat. § 287-15. Suspension will continue until the judgment is satisfied and the debtor gives proof of financial responsibility. Haw. Rev. Stat. § 287-17.
Contact Information: State of Hawaii, Department of Commerce & Consumer Affairs, Insurance Division, P.O. Box 3614, Honolulu, HI 96811, (808) 586-2790, http://hawaii.gov/dcca/ins/.
Anti-Indemnity Statutes
Prohibits Broad Indemnity. Applies to Construction Contracts or Agreements. Hawaii Rev. Stat. § 431:10-222.
Does not apply to any valid workers’ compensation claim.
Diminution of Value
First Party: Hawaii courts have used diminution in value to establish value for the purposes of condemnation, along with using diminution as the method of establishing values for loss to real property. County of Kauai v. Pacific Standard Life Ins. Co., 653 P.2d 766 (Haw. 1982); Clog Holdings, N.V. v. Bailey, 992 P.2d 69 (Haw. 2000), Opinion Ordered Depublished (April 20, 2000).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
Recording Conversations
One-Party Consent: An individual has the right to record or disclose the contents of an electronic, oral or wire communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Haw. Rev. Stat. § 803-42(3)(A).
Criminal Restitution
Hawaii allows for awards of criminal restitution to direct victims, “including a business entity, trust, or governmental entity,” but case law has determined that under that specific section of the statute, an insurer is not a “direct victim” and, therefore, not entitled to criminal restitution. Haw. Rev. Stat. § 706-646 (West); State v. Loebel, 127 Haw. 241, 277 P.3d 335 (Haw. Ct. App. 2012). An insurance company is not a “victim” under § 706-646, and this statute disallows restitution to the extent the victim received insurance payments. If the victim is covered by insurance, then restitution is not allowed. In Interest of CM, 2017 WL 4325895 (Haw. 2017).
Health and Disability Insurance
Statute of Limitations: 2 Years. Haw. Rev. Stat. § 657-7.
Subrogation of Medical and Disability Benefits are allowed. Beneficial Hawaii, Inc. v. Kida, 30 P.3d 895 (Haw. 2001); Pacific Ins. Co., Ltd. v. Esperanza, 833 P.2d 890 (Haw. 1992). Made-Whole and Common Fund apply. AIG Hawaii Ins. Co., Inc. v. Rutledge, 955 P.2d 1069 (Haw. App. 1998); In re Water Use Permit Applications, 25 P.3d 802 (Haw. 2001).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions, but the Hawaii DOT Official Driving Manual gives funeral processions the right-of-way at intersections. It also discourages vehicles from driving between vehicles in the procession. Hawaii Driver’s Manual, State of Hawaii Dept. of Transportation, pg. 29 (2006).
Workers’ Compensation
Statute of Limitations: 2 Years. Haw. Rev. Stat. § 386-8.
Can Carrier Sue Third Party Directly: Yes, after 9 months.
Intervene: Yes.
Recovery from UM/UIM Benefits: Yes?
Subrogation Against Medical Malpractice: Undecided.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: (1) Fees, Expenses; (2) Carrier Reimbursed, Less Pro-Rata Fees; and (3) Balance to Plaintiff.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Apportionment is based on the activity of each party.
Future Credit: Yes, with approval from the Department of Labor.
Auto No-Fault: Yes.
Dog Bite Laws
Haw. Rev. Stat. Ann. § 663-9 seems to establish strict liability by clearly eliminating knowledge of the dangerousness or viciousness of a dog as an element of proof. However, in Hubbell v Iseke, 727 P2d 1131 (Haw. App. 1986), the Court determined that the plaintiff must prove at least negligence on the part of the defendant. Haw. Rev. Stat. Ann. § 663-9.
Employee Leasing Laws
Hawaii’s statutes do not address the issue. Although there are no cases directly interpreting employee leasing situations, the Hawaii Supreme Court has held that a temporary employer utilizing an employee from a temporary agency was entitled to the exclusive remedy protection because it had paid a fee to the temporary agency, which the court construed to include the cost of workers’ compensation insurance premiums. Frank v. Hawaii Planing Mill Foundation, 963 P.2d 349 (Haw. 1998).
Condominium Waiver of Subrogation Laws
Associations must maintain property, commercial general liability, and a fidelity bond. Waiver of subrogation is not discussed in the statute. Haw. Rev. Stat. § 514B-143.
Automobile Total Loss Thresholds
Total Loss Formula (See here for definition).
Insurer determines if a vehicle is repairable or whether it is a total loss, and must have material damage to vehicle’s frame, unitized structure, or suspension system, and cost of repairing damage exceeds market value. Haw. Rev. Stat. § 286-48.
Sudden Medical Emergencies While Driving
Sudden Emergency Defense Not Recognized. A person generally owes a duty to all foreseeable plaintiffs who are subjected to unreasonable risk of harm by person’s conduct. A driver who suffers a sudden unforeseeable loss of consciousness does not owe a duty to others who he or she may injure while unconscious. Cruz v. United States, 987 F. Supp. 1299 (D. Haw. 1997).
In determining whether a driver’s incapacity to control his vehicle was foreseeable, a number of factors are considered including: driver’s awareness or knowledge of the condition; if driver had sought medical advice or was under a physician’s care for the condition; whether the driver had been prescribed, and had taken, medication for the condition; whether a sudden incapacity had previously occurred while driving; the number, frequency, extent, and duration of previous incapacitating episodes. Cruz v. United States, 987 F. Supp. 1299 (D. Haw. 1997).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Hawaii State Tort Liability Act. Haw. Stat. § 662-2 (1957).
Immunity waived for State employees to the same extent as private individuals under similar circumstances (“Private Analog”) unless exception. Cootey v. Sun Inv., Inc., 718 P.2d 1086 (Haw. 1986).
Notice Deadlines: Claim For Damage Or Injury must be presented to the State within two years of when claim accrues. Haw. Stat. § 662-4. Medical tort claims shall be presented within six years. Haw. Stat. § 657-7.3.
Claims/Actions Allowed: As a no-fault state, no claim arises against a liable State employee for negligently operating a motor vehicle until the accident is deemed to be “serious” (medical expenses over $5,000, use of body part permanent, in death). Property claims allowed. Haw. Stat. § 431:10C-306; Savini v. Univ. of Hawaii, 113 Haw. 459, 153 P.3d 1144 (2007). Immunity also waived to extent of insurance. Haw. Stat. § 661.11.
Comments/Exceptions: Hawaii does not waive immunity for any claim arising from:
(1) An act or omission in the execution of a statute or a discretionary duty;
(2) Any claim arising in the collection of any tax; and
(3) Any claim arising out of assault, battery, false imprisonment.
See Haw. Stat. § 662-15 for other exceptions.
Damage Caps: Non-economic damages are capped at $375,000. Haw. Stat. § 663-8.7. No punitive damages against the State. Haw. Stat. § 662-2. Any judgment over $1 million against State may be paid over five years. Haw. Stat. § 657-24.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer must (1) offer a cash settlement based upon the ACV of a “comparable auto”, if within 30 days the insured purchases a new car, the insurer must reimburse for excise tax and ownership fees, or (2) offer a replacement comparable auto including all excise taxes and ownership fees. Haw. Rev. Stat. § 431:10C-312.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. However, courts have applied various measures of damages to personal property. All of these measures are merely guides to common sense aimed to ultimately fully compensate the injured party. The assessment of property damage must rest on its own facts and circumstances. Richards v. Kailua Auto Mach. Serv., 10 Haw. App. 613, 623, 880 P.2d 1233, 1238 (1994).
Damage to Property Without Market Value
Service Value: No Case Law
Intrinsic Value: No Case Law
Sentimental Value: Measure of damages is actual compensation to injured party, unless special misconduct in aggravation warrants grant of punitive damages. Chin Kee v. Kaeleku Sugar Co., 1926 WL 3055 (Haw. 1926) (unreported).
Municipal/County/Local Governmental Immunity and Tort Liability
Legal Authority: Claims against cities and counties not governed by Hawaii State Tort Liability Act. Local municipalities have no sovereign immunity to waive. Kahale v. City and County of Honolulu, 90 P.3d 233 (Haw. 2004).
Notice Deadlines: Notice of Claim within two (2) years. Haw. Stat. § 46-72.
Claims/Actions Allowed: City and County subject to the state’s tort laws in the same manner as any other private tortfeasor. Kaczmarczyk v. City and County of Honolulu, 656 P.2d 89 (Haw. 1982).
Comments/Exceptions: No public entity or public employee shall be liable for injury or damage sustained when using a public skateboard park, unless injury or damage caused by a condition resulting from failure to maintain or repair the skateboard park. Haw. Stat. § 46-72.5.
Damage Caps: None.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No person shall operate a motor vehicle while using a hand-held mobile electronic device, this includes text messages. Exceptions: when being used to dial 911 or using the device hands-free. Haw. Rev. Stat. § 291C-137(a).
No driver under the age of 18 may operate a motor vehicle while using a hands-free mobile electronic device, unless you are dialing 911. Haw. Rev. Stat. § 291C-137(b).
Other Prohibitions: No Applicable Laws
Comments: All county and city laws are preempted by state law. Haw. Rev. Stat. § 291C-137(h)
Workers’ Compensation Claims by Undocumented Employees
Y/N/U: Y
Statute: The statute states “any individual in the employment of another person.” The statute is silent on “aliens” as well as “legal” and “illegal aliens.” Haw. Rev. Stat. § 386-1.
Case Law: Undecided
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. Montalbo, 828 P.2d 1274 (Haw. 1992).
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: No case law.
This is likely because Hawaii became a state in 1959, long after the Imputed Contributory Negligence Doctrine had been abandoned in all the other states.
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine.
Sponsor Liability for Minor’s Driving: Haw. Rev. Stat. § 286-112 Joint and several liability is imposed on the person verifying a minor’s driver’s license.
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. Haw. Rev. Stat. § 657-13. Discovery Rule applies.
Liability Standards: Negligence, Strict Liability.
Fault Allocations: Modified Comparative (Pure Comparative for strict liability). Haw. Rev. Stat. § 663-31.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: No.
Innocent Seller Statute: No.
Joint and Several Liability: No. Haw. Rev. Stat. § 663-10.9.
Available Defenses: Misuse; Government Contractor Defense; Alteration; Inherently Unsafe Products.
Restatement 2nd or 3rd?: Both.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Haw. Rev. Stat. § 291C-121.
Common Law Rule: An owner who leaves the keys in a vehicle can be held liable for damages to third parties after the theft of the vehicle, if certain circumstances exist that make the theft foreseeable. Uy v. Spencer Homes, Inc., 354 P.3d 186 (Table) (2015); Ajirogi v. State, 583 P.2d 980 (1978).
Anti-Subrogation Rule
The Anti-Subrogation Rule is yet to be determined.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Haw. Rev. Stat. § 437B-1; Haw. Rev. Stat. § 437B-13; Haw. Rev. Stat. § 437B-15; Haw. Rev. Stat. § 431:10C-313.6.
Summary: The insured must be given a choice between using OEM or non-OEM parts. If the insured chooses to use the OEM part over a non-OEM part, the insured must pay for the difference in cost between the OEM and non-OEM part unless the car’s warranty specifies that OEM parts must be used. If a non-OEM part is used, the insurer must guarantee the non-OEM part for either 90 days or the same length that the OEM part would be guaranteed for, whichever is longer. All work done by the repair shop must be recorded on an invoice and note clearly where the non-OEM parts were used. Any warranties that come with the non-OEM parts must also be included with the invoice.